Will SCOTUS rein in activist judges in lower courts?

One of the most interesting aspects of this week’s travel ban decision in the Supreme Court is Justice Thomas’ carefully-reasoned opinion on the lower-level court injunction that led to the decision.  His views are provided in pp. 46-56 of the judgment (link is to an Adobe Acrobat document in .PDF format).  Bold, underlined text is my emphasis.

I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common.

District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.

I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.

If district courts have any authority to issue universal injunctions, that authority must come from a statute or the Constitution … No statute expressly grants district courts the power to issue universal injunctions. So the only possible bases for these injunctions are a generic statute that authorizes equitable relief or the courts’ inherent constitutional authority. Neither of those sources would permit a form of injunctive relief that is “[in]consistent with our history and traditions.”

. . .

In short, whether the authority comes from a statute or the Constitution, district courts’ authority to provide equitable relief is meaningfully constrained. This authority must comply with longstanding principles of equity that predate this country’s founding.

Universal injunctions do not seem to comply with those principles. These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.

. . .

Moreover, as a general rule, American courts of equity did not provide relief beyond the parties to the case. If their injunctions advantaged nonparties, that benefit was merely incidental. Injunctions barring public nuisances were an example. While these injunctions benefited third parties, that benefit was merely a consequence of providing relief to the plaintiff.

. . .

American courts’ tradition of providing equitable relief only to parties was consistent with their view of the nature of judicial power. For most of our history, courts understood judicial power as “fundamentall[y] the power to render judgments in individual cases” … They did not believe that courts could make federal policy, and they did not view judicial review in terms of “striking down” laws or regulations.

. . .

By the latter half of the 20th century, however, some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of addressing those questions only insofar as they are necessary to resolve individual cases and controversies.

. . .

Universal injunctions remained rare in the decades following Wirtz … But recently, they have exploded in popularity … No persuasive defense has yet been offered for the practice. Defenders of these injunctions contend that they ensure that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch … But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. They at best “boi[l] down to a policy judgment” about how powers ought to be allocated among our three branches of government … But the people already made that choice when they ratified the Constitution.

In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.

There’s more at the link.

I think Justice Thomas is entirely correct.  Such universal injunctions have become tools in the hands of activist judges, seeking to “legislate from the bench”.  IMHO, they need to be severely limited and, in many cases, eliminated in their entirety.



  1. This from the man who was publicly lynched on national television by the Democrats, and came within a whisker of not being confirmed or withdrawing.

    Scalia's mantle rests upon Mr. Justice Thomas comfortably, and hopefully for a good long while yet to come.

    Lower courts who didn't hear the sound of the dreadnought opening its gunports had better get their judicial hearing checked.
    Thomas is as much as saying that if they pull this kind of thing again, they're going to be reined in by the neckchain, hard.

    It's 50 years overdue, and as his predecessor noted, "Justice delayed is justice denied." But once again, better late than never.

  2. The sounds of Judicial counter-revolution are a sweet bull-roaring in my ears. For far too long the left has used their hidden powers of judicialship against the American People. And attempted to control the overall judicial system by lies, innuendos, corruption and all the other nasty beasts in their zoo of evils.

    I do fear that the backlash will be, hrmmm, interesting, as in Chinese curse interesting.

  3. Proposed: "Three strikes rule of justice": Any judge whose rulings are more than twice finally overruled shall be removed from the bench within a period of 30 days from said final ruling.

  4. Thomas's opinion also has implications for the practice of judicial review as established by Marbury v. Madison. That practice remains controversial, especially as various federal courts have used it as a pretext for legislating from the bench.

  5. McChuck: My first thought was that your suggestion would be (legally speaking) fairly easy, for the inferior courts, since those are created by Congress. And, of course, it (as worded) inherently wouldn't apply to the Supreme Court anyway.
    But then I look back at Article III, and: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior" – so any such rule would have to define "overruled too many times" as "bad behavior", and I think impeachment proceedings might still be required.
    Maybe worth a try, though. Just having the idea contemplated by Congress could serve as a warning.
    Also, reviving the "original jurisdiction" provisions of Article III might be in order. How, given the plain language of the Constitution, can a state sue a federal official or agency in a district court?

  6. A failure of our Congresscretins to do their job and impeach judges who overstep their bounds.

    Who begs you to insert appropriate lines from "The Battle-cry of Freedom" by George F. Root here.

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